Costs in Multi-Issue, Multi-Module Litigation: “Separate and Distinct Issues” Drive Targeted Carve‑Outs; Payment on Account Generally Refused Pending a Liability Appeal

Case: Webster and Anor v Meenacloghspar [Wind] Ltd, Shorten and Anor v. Meenacloghspar [Wind] Ltd [No. 5] (Approved)
Citation: [2026] IEHC 155 (High Court, Egan J.)
Date: 11 March 2026
Context: Costs and application for payment on account pending intended appeal, following earlier findings of wind turbine noise nuisance and grant of injunctive relief and damages.

1. Introduction

This judgment deals with two post-trial matters arising from long-running nuisance proceedings concerning wind turbine noise (“WTN”) from a wind farm operated by the defendant, Meenacloghspar (Wind) Limited. The plaintiffs across the two sets of proceedings (Webster/Rollo and Shorten/Carty) had previously succeeded in establishing that turbine T2 caused actionable nuisance during “night hours and quiet waking hours”, and had obtained injunctive relief to abate that nuisance along with damages.

Egan J. was asked to determine: (i) how costs should be allocated across three “modules” of the case (liability/nuisance and related claims; injunctive relief; and damages assessment), and (ii) whether the plaintiffs should receive a payment on account of costs pending the defendant’s intended appeal.

The case is significant not because it restates the general primacy of “costs follow the event”, but because it provides a concrete, operational method—grounded in ss. 168–169 of the Legal Services Regulation Act 2015 and the recast Order 99—by which a court may (a) refuse to treat the overall winner as “entirely successful”, yet (b) still award that winner most costs while carving out discrete, identifiable “separate and distinct” losing issues.

2. Summary of the Judgment

2.1 Costs

• No party was “entirely successful” within s. 169(1), because the plaintiffs lost on “separate and distinct issues” (notably the section 160 application and the personal injuries claim at module 1; and certain discrete heads at module 3).
• Nonetheless, the plaintiffs were overwhelmingly successful on the central nuisance/injunction outcomes, which consumed the bulk of the time and materials, justifying awards to them of 100% of the costs of:
  • the WTN nuisance claim at module 1 (subject to targeted carve-outs below), and
  • module 2 (injunction/remedy), and
  • most of module 3 (damages), including general damages and devaluation/stigma issues.
• The defendant obtained targeted costs awards on discrete losing issues:
  • Section 160: defendant awarded costs for the hearing days of the parties’ planning experts (15–16 Dec 2022 and 18–19 Apr 2023) and related discrete planning-expert outlays; but not broader pleadings/submissions or other witnesses, and not Mr. Lawlor’s second appearance on 6 Nov 2023 (an issue the plaintiffs won).
  • Personal injuries claim: court made no order as to costs of the personal injuries claim itself (broadly, 3 hearing days; medical reports/consultations; related pleadings/submissions; discovery of medical records), but confirmed earlier orders granting the defendant costs of the amendment application introducing the PI claim, and the costs application relating to that amendment.
  • Module 3 discrete heads:
    • Defendant awarded costs limited to two hours for Mr. Rollo’s unsuccessful past and future accommodation claim.
    • Defendant awarded costs of two hours and the costs relating to the plaintiffs’ loss adjuster (Mr. Fitzgerald) for the unsuccessful reinstatement costs claim.
• The plaintiffs were awarded the costs of two mediations.
• As to defendant-recoverable costs, the court limited counsel recovery to one senior counsel and one junior counsel.

2.2 Payment on account pending appeal

• The plaintiffs sought payment on account under O. 99 r. 2(5) and Practice Direction HC-125, but the court refused.
• Although the court accepted it had jurisdiction (HC-125 allows payment on account where there is no dispute as to liability “and in any other case which a judge thinks appropriate”), it held such an order would be a radical departure where liability for costs is not finally determined and a bona fide appeal is intended on liability, remedy and quantum.
• The costs order and adjudication were stayed (consistent with the separate stay decision delivered the same date).

3. Analysis

3.1 Precedents Cited

The judgment is structured around the post-2015 costs framework and the leading appellate guidance on how ss. 168–169 interact with the court’s residual discretion and the practical question of when “issue-based” costs should be ordered.

• Chubb European Group SE v. Health Insurance Authority [2022] 2 IR 734 (“Chubb”)
  Used as authority that: (i) “entire success” is not automatic where a party wins overall but loses a central or time-consuming issue; and (ii) s. 169(1) factors must still be considered when exercising discretion, including for partially successful parties. Egan J. treats Chubb as cautioning against labelling a party “entirely successful” if it won “on a narrow point” but lost materially elsewhere.
• Higgins v. Irish Aviation Authority [2020] IECA 277;[2022] IESC 45 (“Higgins”)
  The principal Irish roadmap for applying ss. 168–169 and O. 99. Egan J. adopts Murray J.’s pragmatic approach and his four-step questions (entire success; reasons to order otherwise; partial success; what costs are just). Higgins also supports the idea that a party who is only “partially successful” can still recover all costs in an appropriate case, especially where losses are narrow and not central.
• Word Prefect Translation Services v. Minister for Public Expenditure [2023] IECA 189 (“Word Perfect”)
  Key to rejecting “nitpicking” and hindsight-driven micro-management of how a winning party ran its case. Egan J. uses Word Perfect to reject the defendant’s complaint that the plaintiffs unreasonably lengthened module 1: the correct inquiry is whether litigation conduct was objectively reasonable, assessed broadly.
• ESB v. Good [2025] IESC 40 (“Good”)
  Central to the judgment’s methodology. Egan J. repeatedly relies on Good for:
  • the Supreme Court’s caution about turning costs into a “balance sheet” of who won which sub-point;
  • the unresolved difficulties of splitting costs by “issues”; and
  • the test-like emphasis (via Leggatt J.) on whether the overall winner lost “big issues” that occupied substantial time and cost.
  Egan J.’s solution is consistent with Good: identify only genuinely “separate and distinct” issues with material cost/time footprints and impose limited carve-outs, while awarding the bulk to the overall winner on the central dispute.
• Náisiúnta Leictreach Contraitheoir Eireann v. The Labour Court [2020] IEHC 342 (“Náisiúnta Leictreach”)
  Via Higgins, used to support the “pragmatic approach” of looking for “separate and distinct issues” that can be treated as individual “events”, rather than treating every argument as a cost-bearing issue.
• Ryanair v. An Taoiseach [2020] IEHC 673
  Cited for the observation that s. 169(1)(a)–(g) is principally directed at the conduct of proceedings, reinforcing the conduct-focused lens used by Egan J. when addressing alleged delay/overrun.
• Iraqi Civilians v. Ministry for Defence [2018] EWHC 690 (QB) 2 Costs LR 213
  Quoted in Good and carried into this judgment to justify that losing some issues does not necessarily reduce costs; the real question is whether the winner lost any “big issues” that absorbed substantial resources.
• Veolia Water UK Plc v. Fingal County Council (No 2) [2006] IEHC 240
  Discussed through the appellate commentary in Higgins and Good regarding the relationship between pre-LSRA “event” concepts and the statutory “entire success” inquiry. Egan J. notes (tracking Good) that “winning the event” and being “entirely successful” under s. 169(1) are not necessarily identical.
• Connelly v. An Bord Pleanála [2018] IESC 36 (“Connelly”)
  Used by both parties in argument. Plaintiffs relied on it for a holistic approach to success and against issue-parsing; defendant invoked it to discourage “kitchen sink” litigation. Egan J. accepts the anti-“kitchen sink” policy but applies it through s. 169(1)(b) (“reasonable” to raise/pursue/contest an issue), rather than via crude winner/loser tallying.
• Hanrahan v. Merck Sharp Dohme (Ireland) Ltd [1988] ILRM 629
  Not a costs authority but important to Egan J.’s explanation why medical evidence (though tied to an unsuccessful PI head) still had relevance to nuisance: it informed the “objectively reasonable” person standard in nuisance.
• Byrne and Moorhead v. ABO and Byrne v. ABO
  Used contextually to explain trial length (a comparable WTN nuisance case) and to confirm the damages valuation approach the court followed on module 3, relevant to the discussion of why the defendant was well-positioned to make cost-protective offers but did not.

3.2 Legal Reasoning

A. The statutory architecture: ss. 168–169 and O. 99

The judgment begins by restating—at unusual length and precision—the operative principles under ss. 168–169 of the Legal Services Regulation Act 2015 and Order 99 (as amended). This serves two functions:

• to show that “entire success” is a threshold concept that can shift the burden (entitlement to costs unless reason to “order otherwise”); and
• to justify a structured, issue-sensitive approach in cases where no party is entirely successful, while avoiding an “accounting exercise” over minor points.

B. The key operational move: identify only “separate and distinct issues” with real cost consequences

Egan J.’s most practically important contribution is how she filters the defendant’s long list of “plaintiffs lost on X” items. The court:

• rejects fragmentation where the allegedly “lost” matter was not truly pursued or consumed negligible time (e.g. whether T1 caused nuisance; whether nuisance was 24/7);
• treats matters as part of the nuisance case rather than distinct issues (e.g. shadow flicker);
• treats arguable “distinct” claims as immaterial for costs if they did not materially increase cost/time (e.g. negligence/constitutional claim advanced largely by legal submission);
• identifies section 160 and personal injuries (module 1) as genuinely distinct and time-consuming, warranting tailored orders; and
• identifies only two discrete, unsuccessful heads at module 3—accommodation and reinstatement—as warranting defendant costs.

C. “Reasonableness” under s. 169(1)(b) is not the same as “won/lost”

The judgment underscores the statutory wording: the inquiry is whether it was reasonable to raise/pursue/contest an issue, not merely whether it succeeded. This is decisive in two places:

• Shadow flicker: although it failed as a standalone nuisance, it was reasonable to raise; it did not inflate costs; no special costs order.
• Personal injuries: although the PI head ultimately failed (foreseeability), it was reasonable—especially for Mr. Rollo in light of psychiatric evidence; and the medical evidence also overlapped with nuisance/damages context. Result: no order as to costs for the PI issue rather than defendant costs.

D. Managing “trial overrun” as a costs factor: objectivity, not hindsight

The defendant sought a global discount (e.g., 70%) alleging the plaintiffs unduly lengthened module 1. Egan J. rejects this in a detailed fact-based way:

• both parties dramatically underestimated time given novelty and complexity of scientific/acoustic/planning material;
• the defendant’s own strategic posture (planning compliance/“knockout” defence) did not justify truncation and was not pursued as a preliminary issue;
• much length was driven by contested expert evidence and numerous objections/satellite disputes; and
• fairness required recognising the defendant’s contribution to duration, including module 2’s re-litigation posture.

Applying Word Perfect, the court declines a hindsight-driven “litigation choices audit” and instead holds the conduct objectively reasonable, awarding the plaintiffs 100% of the nuisance-determination costs (subject to the specific carve-outs).

E. Damages module and offers: failure to take cost-protective steps weakens “partial success on quantum” arguments

The defendant argued it was “partially successful” because damages were closer to its submissions than to the plaintiffs’. Egan J. rejects this as a costs lever for two reasons:

• Timing reality: submissions on quantum typically occur after evidence, when most costs are already incurred; treating “closeness” as success would be artificial.
• Offers logic (Higgins): in an assessment-only context, parties—especially defendants—can and should protect themselves via offers; the defendant made no specific offers on general damages or devaluation/stigma, which weighs heavily against its costs claim.

The court therefore treats “quantum disagreement” as the ordinary forensic contest within a head of claim, not a “separate and distinct issue”, unless the head is wholly unsuccessful (as with accommodation/reinstatement).

F. Payment on account under O. 99 r. 2(5) and Practice Direction HC-125: jurisdiction exists, discretion generally against where liability is under appeal

On payment on account, Egan J. draws a sharp distinction between:

• payment pending adjudication in the ordinary course (the paradigm case in HC-125, often where liability for costs is effectively settled), and
• payment pending a bona fide appeal on liability/remedy/quantum (the plaintiffs’ true request).

Even acknowledging plaintiffs’ financial strain, the court refuses: it would be a “radical departure” absent precedent and where liability to pay costs is not finally determined. The approach signals that HC-125’s “any other case” wording does not create a routine mechanism to fund a successful party pending an opponent’s liability appeal.

3.3 Impact

• Sharper Irish “issue” taxonomy for costs: The judgment provides a replicable method for distinguishing (i) “separate and distinct issues” with costs consequences from (ii) arguments/questions folded into core issues. This will be especially influential in long, expert-heavy litigation where parties seek granular costs splitting.
• Carve-outs as the preferred tool over percentage discounts: Instead of broad percentage reductions for “partial success”, Egan J. uses targeted carve-outs keyed to identifiable hearing days/hours and discrete expert inputs. This is likely to be attractive to courts seeking proportionality while avoiding “satellite costs litigation”.
• Quantum disputes won’t usually yield defendant costs without offers: The reasoning signals that defendants who want costs leverage from “beating” a plaintiff’s quantum position should use cost-protective offers; otherwise, “partial success” rhetoric on quantum will often fail.
• Payment on account remains exceptional pending liability appeals: The refusal, despite acknowledging hardship, suggests that (absent unusual features) High Court discretion will generally not be exercised to order interim costs payments where a bona fide appeal threatens to unwind the costs liability.

4. Complex Concepts Simplified

• “Entirely successful” (s. 169(1)): Not a common-sense label meaning “you won overall”. It is a statutory gateway: if you are “entirely successful”, you are presumptively entitled to costs unless the court “orders otherwise”. If you lost discrete “separate and distinct” issues that mattered, you may fall short of “entirely successful”.
• “Partially successful” (s. 168(2)): Where success is mixed, the court has a broad discretion to award costs in a way that does justice—this can range from all costs, to proportionate costs, to issue-based costs, to no order.
• “Separate and distinct issue” vs “argument”: A separate issue typically has its own evidence, experts, pleadings focus, and measurable hearing time. An argument is a point used to win/lose an issue and usually doesn’t justify its own costs order.
• Section 160 application: A distinct statutory enforcement route (often planning/environmental) that can, in theory, yield strong relief without proving nuisance. Here it was treated as separate from the nuisance claim and costed accordingly.
• Payment on account of costs (O. 99 r. 2(5); Practice Direction HC-125): An interim payment before full adjudication of costs, often backed by a solicitor’s undertaking to repay overpayment. The court may do it, but this decision indicates it is not normally used to bridge a successful party through an opponent’s liability appeal.

5. Conclusion

Egan J.’s judgment is a practical guide to awarding costs under ss. 168–169 in complex, modular litigation: the overall winner may fail to be “entirely successful” where it loses truly discrete, time- and cost-heavy issues, yet still recover the bulk of costs on the central dispute. The court’s preferred technique is targeted carve-outs (by hearing days/hours and discrete expert work) rather than broad-brush percentage penalties. The judgment also signals a cautious approach to interim costs payments: even with acknowledged hardship, payment on account will generally be refused where costs liability is not finally determined and a bona fide liability appeal is pending.